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Exhibit D

Declaration of Seth Barrett Tillman


Declaration of Seth Barrett Tillman, Lecturer

1. I am a citizen of the United States, and a resident of the Republic of Ireland.


2. In 1984, I graduated from the College of the University of Chicago with a BA (honors), and,
in 2000, I graduated from Harvard Law School with a JD (cum laude). I have practiced law
in the United States, and I have been a federal law clerk in the Third Circuit and in three
district courts, for two district judges and for one magistrate judge. I have taught as an
adjunct in a U.S. law school, and since 2011, I have been part of the full time faculty in the
Maynooth University Department of Law, Ireland. (My university affiliation is listed for
identification purposes only.) My title is lecturer.
3. I have over 30 publications;1 they are cited over 400 times, including over 200 domestic2 and
foreign3 journal citations, by courts of record,4 and in legal briefs and other filings submitted

1
See, e.g., Tillman Papers, SSRN (last visited Sept. 7, 2017),
https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=345891; see also, e.g., Tillman Papers,
Bepress (last visited Sept. 7, 2017), https://works.bepress.com/seth_barrett_tillman/. Several years ago, I
think circa 2012, I posted extracts online from both Hamilton documents and both typeset reproductions
to stimulate public discussion. Those documents are all still available and plainly visible on my website.
See Bepress (last visited Sept. 7, 2017), https://works.bepress.com/seth_barrett_tillman/203/.
2
See, e.g., Tuan Samahon, The Czars Place in Presidential Administration, and What the Excepting
Clause Teaches Us About Delegation, 2011 U. CHI. LEGAL F. 169, 195 n.127; cf., e.g., William
Josephson, Remarks at the University of Chicago Alumni Asso., The New York Times, Me, the Electoral
College and Us 16 n.44 (May 17, 2017) (available from the author).
3
See, e.g., Richard Albert, Constructive Unamendability in Canada and the United States, 67 Sup. Ct. L.
Rev. (2d) 181, 196 n.92 (2014) (Canada) (peer reviewed); Luke Beck, The Constitutional Prohibition on
Religious Tests, 35 Melbourne U. L. Rev. 323, 349 n.192 (2011) (peer reviewed); Julio Csar Betancourt,
State Liability for Breach of Article II.3 of the 1958 New York Convention, 33(2) Arbitration International
203, 206 n.11 (2017) (U.K.) (peer reviewed); Hilary Biehler, Normal and Leapfrog Appeals to the
Supreme Court, 35(1) Irish Law Times 5, 10 n.68 (2017); Christopher Bisping, Conquering the Legal
World? The Use of English in Foreign Courts, 20 Euro. Rev. of Private L. 541, 542 n.2 (2012)
(Netherlands) (peer reviewed); Stephen M. Durden, Textualisms, 2 Brit. J. Am. Legal Stud. 59, 71 n.64,
74 n.86, 83 n.132, 84 n.134, 86 n.147 (2013) (peer reviewed); Titiaan A. Kiejzer, De betekenis van art.
2:190 BW: over BV-aandelen en aandeelhouderschap, 148(5) Weekblad voor Privaatrecht, Notariaat en
Registratie (WPNR 7137) 137, 143 n.53 (Feb. 11, 2017) (Netherlands); Myeong-Sik Kim, A Note on the
Independence of the US Vice President, 25(2) Study on the Amer. Const. 35, 40 n.16, 61 (Aug. 2014)
(Korea); Nat Ofo, Amending the Constitution of the Federal Republic of Nigeria 1999, 4 Afr. J. Legal
Stud. 123, 136 n.39 (2011) (Netherlands) (peer reviewed); Osvaldas Raiukeviius, Paskesnioji Apkalta:
Samprata Privalumai ir Trukumai, 15(1) Vytautas Magnus University L. Rev. 61, 66 n.23, 80 (2017)
(Lithuania); Rivka Weill, Reviewing Continuity in Legislation, 37(3) Tel Aviv U. L. Rev. 563, 632 n.360
(2016) (peer reviewed); see also, e.g., Panagiotis S. Kapotas,
137/2015 99/2015 (
), & (Jan. 2015) (Greece); cf., e.g.,
Panagiotis S. Kapotas, 137/2015 99/2015 (
),

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TILLMAN DECLARATION

to courts of record and administrative bodies, domestic 5 and foreign.6 I frequently write on
Founding era legal issues and materials. I have had more than one occasion to discuss the
Hamilton-related documents which are the primary subject of this Declaration. 7
4. I have reviewed photoduplicates of the February 26, 1793 roll of officers. 8 There are two
such documents. The longer of the two documents was reported and reproduced (in part) in
The Papers of Alexander Hamilton (PAH). For convenience, I call the original document,
which was reported and reproduced (in part) in PAH, The Complete Report.9 The shorter of
the two documents was reported and reproduced in American State Papers (ASP). For
convenience, I call the original document, which was reported and reproduced in ASP, The
Condensed Report.10 The two originals are in longhand, and the PAH and ASP reproductions
or records are typeset. I have also examined the typeset reproductions. The photoduplicates
(primarily in PDF format) were supplied to me by a researcher at the Alexander Hamilton

Constitutionalism (April 8, 2015) (Greece). Most of these foreign citations do not appear on Westlaw or
LexisNexis.
4
See, e.g., OptimisCorp v. Waite, Civ. A. No. 8773-VCP, 2015 WL 5086342, at *74 n.589 (Del. Ch.,
Aug. 26, 2015); Finnegan v. Baker, Civ. A. No. SUCV2009-03772-BLS1, 2012 WL 6629636, at *24 n.4
(Mass. Super. Ct., Oct. 18, 2012); cf., e.g., (Justice) Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 113, 504, 563 (2012); (Judge) D. Arthur Kelsey, The Resurgent Role of
Legal History in Modern U.S. Supreme Court Opinions, Va. Bar Asso. News J., Fall 2010, at 11 n.11.
5
See, e.g., Brief of Law Professors as Amici Curiae in Support of Petitioners at 14 n.6, Free Enter. Fund
v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138 (Aug. 3, 2009) (No. 08-861), 2009 WL 2372919;
Brief for the Appellee Democratic National Committee; Souraya Faas v. Hillary Clinton (11th Cir. Aug.
4, 2017) (No. 17-11381), 2017 WL 3492561, at *25 & n.9; Appellants Brief, Mains v. Citibank, NA as
Trustee for Wamu Series 2007-HE2 Trust (Ind. Ct. App. Dec. 23, 2013) (Case No. 10A04-1309-MF-450),
2013 WL 7389869, at *22*23.
6
See, e.g., The Environmental NGO Partners to the Environmental Law Implementation GroupAarhus
Submission at 31 n.43, 37 (Sept. 26, 2014) (submission to a non-U.S. regulatory body); Environmental
Pillar Submission to the Public Consultation on Access to Justice and Implementation of Article 9 of the
Aarhus Convention at 17 & n.14, 38 (Sept. 26, 2014) (same).
7
See, e.g., Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton
and the Problem of Statutory Qualifications, 5 Brit. J. Amer. Leg. Studies 95 passim (2016) (peer
reviewed); Seth Barrett Tillman, Loyola University of Chicago Law School Annual Constitutional Law
Colloquium, Six Puzzles for Professor Amar, 1314, 18 (Nov. 1, 2013), http://tinyurl.com/ybo38fku; Seth
Barrett Tillman, Either/Or: Professors Zephyr Rain Teachout and Akhil Reed AmarContradictions and
Reconciliation 6869 (2012) (unpublished manuscript, posted on the Social Science Research Network),
http://tinyurl.com/yay65ude.
8
I have continually reviewed these documents for many years; here, I only discuss my most recent
review.
9
See Exhibit K, The Complete Report Transmittal Letter; Exhibit L, The Complete Report Cover
Letter; Exhibit M, The Complete Report Annexes I, II, IVXVIII; Exhibit N, The Complete Report
Annex III; Exhibit O, The Complete Report Annex XIX.
10
See Exhibit P, The Condensed Report.

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TILLMAN DECLARATION

Papers Project at Columbia University. I sent the PDFs to Katherine Mollan, the legislative
archivist with oversight over both originals, at the National Archives. Mollan determined that
the PDFs were substantially complete.11 She did note a few pages were out of order and two
annexes were missing from my PDF of The Complete Report. She sent me the two missing
annexes, No. III12 and No. XIX.13 A few other pages remain outstanding: those few missing
pages are each marked Contingent Expenses, and I do not believe any conclusions could turn
on their contents.
5. These two titlesThe Complete Report and The Condensed Reportare entirely matters of
convention and convenience. The draftsperson (or, possibly, draftspersons) who drafted The
Condensed Report worked from The Complete Report. But what materials (if any) the
draftsperson left in, and what materials (if any) the draftsperson took out, and what materials
(if any) the draftsperson might have added from other sources can only be determined by
closely comparing the two reports. There is no extant written record expressly explaining
how these concrete and particular editorial judgments were made.
6. The Papers of Alexander Hamilton. PAH reproduces the cover letter of The Complete
Report. The Complete Report has three parts: a single page transmittal letter dated February
27, 1793;14 a two-page cover letter explaining in detail what annexes are included, and dated
February 26, 1793;15 and the nineteen separate annexes themselves. 16 PAH reproduces the
two-page cover letter, and PAH characterizes this document as DS or document signed.17
In other words, the independent Hamilton experts and editors of PAH, in a nonlitigation-
driven environment, identified The Complete Report as one which was signed by Hamilton.

11
See Exhibit C, Letter from Katherine Mollan, National Archives, to Seth Barrett Tillman (Aug. 17,
2017).
12
See Exhibit N, The Complete Report Annex No. III.
13
See Exhibit O, The Complete Report Annex No. XIX.
14
See Exhibit K, The Complete Report Transmittal Letter; see also infra 1925, 44 (discussing
transmittal letter in further detail, and why the transmittal letter was part of The Complete Report, not The
Condensed Report or any other second report from Hamilton to the Senate).
15
See Exhibit L, The Complete Report Cover Letter, at 13.
16
See Exhibit M, The Complete Report Annexes I, II, IVXVIII; Exhibit N, The Complete Report
Annex III; Exhibit O, The Complete Report Annex XIX.
17
See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United
States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton (PAH) 157, 159 (1969),
http://perma.cc/49RT-TTGF; infra 43 (further discussing how one ought to read PAH, a collected paper
series).

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TILLMAN DECLARATION

7. PAH does not reproduce The Condensed Report in whole or in part. But the PAHs editors
were aware of the existence of The Condensed Report. PAH cites to the ASP report and
reproduction of The Condensed Report in footnote 3, that is among the footnotes
immediately following PAHs (partial) reproduction of The Complete Report.18 Moreover, a
copy of The Condensed Report is in the PAH archives at Columbia Universitys Alexander
Hamilton Papers Project. The PAH editors did not identify The Condensed Report as either
drafted by or signed by Hamilton. Footnote 3 merely states: This enclosure, consisting of
ninety manuscript pages [that is the nineteen annexes to The Complete Report], has not been
printed [in PAH]. For an abbreviated version of it, see ASP [i.e., American State Papers],
Miscellaneous, [vol.] I, 5768.19 In short, the editors of PAH did not identify The
Condensed Report as either drafted or signed by Hamilton, notwithstanding that the PAH
editors had a photocopy of The Condensed Report, notwithstanding that the PAH editors
knew of The Condensed Reports reproduction in ASP, and notwithstanding that The
Condensed Report has the words Alexander Hamilton (in long hand) where a signature
might appear.
8. Based on PAH, I concluded that The Condensed Report was in large part a scriveners copy
or reproduction of the genuine Hamilton-signed original, i.e., The Complete Report. The
copyist merely copied Hamiltons signature from The Complete Report into The Condensed
Report. My conclusion here is based on the understanding that the editors of PAH intended to
reproduce (in whole or in part) all known Hamilton drafted or signed documents (except
documents relating to Hamiltons law practice, which were published in a separate series).20
It is the very fact that The Condensed Report was not reproduced in the pages of PAH and
not listed as DS which indicates that PAHs editors rejected this document as a bona fide
Hamilton-drafted or Hamilton-signed document.

18
See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United
States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton 157, 159 n.3 (1969),
http://perma.cc/49RT-TTGF.
19
Id.
20
See, e.g., A Note on the Papers of Alexander Hamilton Digital Edition [(PAHDE)], ROTUNDA (last
visited Aug. 30, 2017), http://bit.ly/2h36KvD (PAHDE provides online access to all known existing
documents by and to Hamilton, including all editorial annotation provided by the original editors, as well
as enhancements specific to the digital edition. (emphasis added)); id. at http://bit.ly/2w8vOM3
(reproducing roll of officers as it appeared in the print edition, absent any reproduction or hypertext link
to ASP or The Condensed Report).

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TILLMAN DECLARATION

9. Hamiltons Signature and a Purported Signature. The signature in The Complete Report is
florid and ornate.21 For example, in The Complete Report, the x in Alexander goes beneath
the other letters. Likewise, in The Complete Report, the last letter of each name, the r in
Alexander and the n in Hamilton, both trail off into unreadability, as one expects in a bona
fide signature.
10. Hamilton not only signed the cover letter of The Complete Report, but he also signed Annex
XIII (listing commissioners of loans and their emoluments). 22 He signed as A Hamilton,
and here too, the trailing n is not readable.
11. Likewise, Hamilton signed the February 27, 1793 transmittal letter. Here too, the x in
Alexander goes beneath the other letters, and the last letter of each name, the r in
Alexander and the n in Hamilton, both trail off into unreadability. 23
12. By contrast, in The Condensed Report, the x in Alexander does not go beneath the other
letters, and the last letters of each name do not trail off into unreadability; rather, all the
letters in the purported signature are nicely horizontally aligned and neatly drawn. 24
13. More importantly, in The Complete Report, Hamiltons signature is large: as large as, if not
noticeably larger than, the text of the letter itself. 25 Not so in The Condensed Report. In The
Condensed Report, Hamiltons purported signature is considerably smaller than the text of
the letter.26 Average people do not customarily sign important documents using such small
signatures, and Alexander Hamilton was not an average person. Hamilton was a larger-than-
life national personality. He knew this document was being transmitted to the Senate as an
official communication from the Treasury Department. I believe he would have wanted his
signature to be noticed, not hidden as very small text. The idea that Hamilton signed this
document using such small letters strikes me as inconsistent both with what I know about
Hamilton and with what I know about how people sign important official government-to-
government communications.
14. I would also add that the handwriting used in the purported Hamilton signature in The
Condensed Report appears to match the handwriting used in most of, if not all of, the

21
See Exhibit L, The Complete Report Cover Letter, at 3.
22
See Exhibit M, The Complete Report Annexes I, II, IVXVIII, at 66 (reporting Annex XIII).
23
See Exhibit K, The Complete Report Transmittal Letter, at 2.
24
See Exhibit P, The Condensed Report, at 2.
25
See Exhibit L, The Complete Report Cover Letter, at 3.
26
See Exhibit P, The Condensed Report, at 2.

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TILLMAN DECLARATION

remainder of that (continuous) documentwhich is nearly 30 pages long. I find it very


difficult to believe that Secretary Hamilton personally drafted such a lengthy memorandum
when he had staff to whom he could have turned. 27 For these reasons, I conclude that the
signature in The Complete Report is genuineit is Hamiltons signature. Furthermore, I
conclude that the purported signature in The Condensed Report is not genuineit is not
Hamiltons signature. Indeed, it is not a signature at all: it is just a scriveners copy of
another document, and the copyist copied out the signature which appeared in the original.
15. The Oddity of the Condensed Report. The Condensed Report is a strikingly odd document.
This is obvious to anyone who gives it even a casual perusal. Indeed, the very first page of
the document starts with a crossed out paragraph. 28 On the very same page, it has crossed out
marginalia, and a footnote marked with an asterisk beneath a line which is not straight. 29 The
rest of the document has much crossed out material. 30 All these markings are consistent with
the general conclusion that The Condensed Report was a draft purposely made by Senate
functionaries and for Senate printers, not for the Senate. Senate employees can be more
casual when producing work product for other Senate staff (or employees or temporary
agents such as printers) than they can when drafting work product for elected members.
16. If this document, The Condensed Report, had been drafted circa 1792 to 1793, as some others
apparently believe, then it was drafted during peace time: there was no national emergency or
war. And Hamiltons Treasury Department, unlike other Executive Branch departments, was
(relatively) rich with staff. 31 The fact that this document is not neat or professional suggests
(in my view) that this document was not generated by the Treasury Department, and that it
was not intended as a final document; rather, it was a draft document to be used internally
(e.g., subsequent reproduction by Senate commissioned printers).

27
See Josh Chafetz, Congresss Constitution: Legislative Authority and the Separation of Powers 100
(2017) (noting that the Foreign Affairs and War Departments provided simply for a secretary and a chief
clerk; [by contrast Hamiltons] . . . Treasury Department received the comparatively opulent staff of six).
28
See Exhibit P, The Condensed Report, at 3.
29
See Exhibit P, The Condensed Report, at 3.
30
See, e.g., Exhibit P, The Condensed Report, at 3 (crossed out marginalia at the top left); id. at 5 (crossed
out material in the middle of the page); id. at 10 (supplemental footnote written vertically); id. at 11
(crossed out material, and vertical material); id. at 12 (a crossed out paragraph).
31
See Josh Chafetz, Congresss Constitution: Legislative Authority and the Separation of Powers 100
(2017) (noting that the Foreign Affairs and War Departments provided simply for a secretary and a chief
clerk; [by contrast Hamiltons] . . . Treasury Department received the comparatively opulent staff of six).

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TILLMAN DECLARATION

17. Recently, and in connection with current litigation, some have made the claim that The
Complete Report was a preliminary report; this position is not supported. It is The Complete
Report which was the final report. It is neat and professional in appearance. It is The
Condensed Report which actually starts with an entire crossed out paragraph, and it is full of
crossed out material, and even has a line across the very first page which is not straight.
Anyone who believes that such a document would be sent as official (much less final)
correspondence in a government-to-government communication (absent the most dire
emergency) has a very different view than my own in regard to how to verify the provenance
of 18th century and early 19th century American government documents.
18. I conclude that The Condensed Report was not the sort of document Secretary Hamilton (or
the Treasury Department) would sign and transmit as an official communication from the
Treasury Department to the Senate in response to a Senate order.
19. Parliamentary Practice. There is an additional reason to reject the supposition that The
Condensed Report was an official communication from Hamilton (or the Treasury
Department) to the Senate: such a claim is entirely inconsistent with parliamentary practice at
the time.
20. Thomas Jeffersons A Manual of Parliamentary Practice for the Use of the Senate of the
United States provides:
Sec. XLIX. JOURNALS.
[49.1] Each house shall keep a journal of its proceedings, and from time to time publish
the same, excepting such parts as may, in their judgment, require secrecy. Constitution. I.
5.
Every vote of Senate shall be entered on the journals, and a brief statement of the
contents of each petition, memorial or paper, presented to the Senate, be also inserted on
the journals. Rule 24.32

21. Senate Rule 24 had its origins in a Senate report from 1789.
The committee to whom was referred the motion for printing the journals of the
Senate, and furnishing each member with a copy thereof; and also, to report upon the
mode of keeping the journals, and who were instructed to consider whether the minutes
be amended, so as to record only the acts of the Senate on the journal, reported as
follows:

32
Thomas Jefferson, A Manual of Parliamentary Practice for the use of the Senate of the United States 91
(1801) (1993 GPO reproduction) (bold added, italics in the original),
https://www.senate.gov/artandhistory/history/resources/pdf/SDoc103-8.pdf.

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TILLMAN DECLARATION

That one hundred and twenty copies of the journals of the legislative
proceedings only be printed once a month, commencing the first publication on
the first day of June next, and that each member be furnished with a copy; that
the proceedings of the Senate, when they shall act in their executive capacity,
shall be entered and kept in separate and distinct books.
That every vote of the Senate shall be entered on the journals, and that a
brief statement of the contents of each petition, memorial, or paper, presented to
the Senate, be also inserted on the journals.
That the journals, previous to each publication, be revised by a
committee to be appointed from time to time for that purpose; which report was
accepted.33

22. I do not believe that the 1789 report expressed a new Senate rule; rather, I believe it was a
matter of established lex parliamentaria.34
23. Consistent with this Senate rule, the Senate Journal on February 27, 1793 states:
The Vice President laid before the Senate a report of the Secretary of the
Treasury, on the salaries, fees, and emoluments, of persons holding civil offices under the
United States, pursuant to the order of the Senate of the 7th of May, 1792; which were
read.
Ordered, That they lie [on the table] for consideration.35

24. The Senate Journals entry states that the Senate received a report, using the singularnot
two reports. Likewise, I see no subsequent entries in the Senate Journal indicating that the
Senate (as opposed to the Secretary of the Senate) either asked for or received a second or
condensed report from Hamilton or the Treasury Department or from anyone else. This
absence of any entry in the Senate Journal (where such a journal entry is expected36)
indicating that the Senate received a second report (i.e., The Condensed Report) from
Hamilton (or the Treasury Department) is good evidence that The Condensed Report was an
internal report produced by unknown Senate functionaries. Furthermore, I know of no
correspondence directed to Hamilton or the Treasury Department requesting a second or
condensed report. Recently, and in connection with current litigation, some have speculated
33
1 Journal of the Senate of the U.S.A. 27 (1820) (May 19, 1789 entry) (emphases added),
http://tinyurl.com/y92b75yc.
34
See E-mail from Martyn Atkins, U.K. House of Commons Clerk (Procedure Committee) to Seth Barrett
Tillman (Sept. 11, 2017), http://bit.ly/2xy0qXK (The requirement on the Clerk to record in the Journal
the presentation to the House of each account and paperwhich persists in essence to this dayis of
very long standing, but the authority for the requirement cannot be readily traced to a particular order of
the House.).
35
1 Journal of the Senate of the U.S.A. 497 (1820) (Feb. 27, 1793 entry) (first emphasis added),
http://tinyurl.com/y9gluhjv.
36
See Aaron-Andrew P. Bruhl, Against Mix-and-Match Lawmaking, 16 Cornell J.L. & Pub. Poly 349,
362 (2007) (Absence of evidence is sometimes evidence . . . notably when the evidence is expected.).

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TILLMAN DECLARATION

that the Senate directed Hamilton or the Treasury Department to produce a second report, or
that Hamilton or the Treasury Department drafted, signed, transmitted, or, at least, knew of
the existence of a second report. I see no basis for this view.
25. I conclude that the only report which was transmitted from the Treasury Department to the
Senate was The Complete Report. The Condensed Report was an internal report of the
Senate, generated by Senate functionaries for use by Senate printers, and it was generated
some time after the Senate had received The Complete Report.
26. The Endorsements and Acknowledgements on the Two Documents. Both The Complete
Report and The Condensed Report have language on them functioning as or akin to
endorsements or acknowledgments. On the two-page cover letter to The Complete Report is
an ink endorsement; the ink endorsement states: 2d Sess. L. 2d Con List of Papers returned
by the Secretary of the Treasury of the Salaries of Civil Officers. This endorsement is
consistent with the February 27, 1793 transmittal letter. However, [w]ritten faintly in pencil
below the ink endorsement is [a notation stating] [Document] No. 10 To be condensed &
printed. See page Journal 441 & 497.37 In other words, the Senate received this two-page
cover letter on February 27, 1793, and after receiving The Complete Report, someone at the
Senate (writing in pencil) marked up the document and indicated that it would be condensed
in the future.
27. It makes no sense to suggest that Hamilton or his Treasury Department staff sent an original
document in ink and pencil. Rather, the pencil notation was added by the recipients on the
Senate side.38 One might consider the opposite hypothesis: that after receiving The Complete
Report, someone at the Senate wrote to Hamilton or the Treasury Department and sought a
condensed version. Again, there is no record of any such correspondence between the Senate
and Hamilton (or the Treasury Department). The better view is that Senate functionaries
decided that a condensed version was needed, and it was generated internally by Senate staff.

37
Letter from Katherine Mollan, National Archives, to Seth Barrett Tillman, at 2 (June 7, 2017)
(italicized language is that appearing in the notation in pencil); see also Exhibit L, The Complete Report
Cover Letter, at 1 (providing a faint, but readable, image).
38
Cf. Introduction, The Early Republic Critical Editions on the Founding of the United States (last visited
September 4, 2017) (noting that [w]hen Congress authorized publication of the American State Papers in
1831, the editors of the series made their own markings right on the House documents (emphasis
added)), http://tinyurl.com/ycu2vocw.

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TILLMAN DECLARATION

28. The next question is when was The Condensed Report drafted. I do not believe it was drafted
contemporaneously with The Complete Report. The penciled notation states: to be
condensed, which indicates that it would happen in the futureafter the Senate received
The Complete Report.
29. That notation also expressly references pages 441 and 497 of the Senate Journal.39 I believe
Journal 441 refers to the May 7, 1792 entry in the Senate Journal where the Senate
ordered Hamilton to produce the very report being discussed here,40 and Journal . . . 497
refers to the February 27, 1793 entry in the Senate Journal where the Senate indicated that it
had received The Complete Report.41 This pagination appeared in the Gales & Seaton
reproduction of the Senate Journal. That reproduction of the Senate Journal was published in
1820nearly three decades after the submission of the bona fide Hamilton-signed Complete
Report,42 and more than a decade after Hamilton died in his duel with Burr.
30. For this reason, I conclude that this instruction to condense The Complete Report (that is, to
draft The Condensed Report) was written long after Hamilton was killed by Aaron Burr in
1804. It follows that The Condensed Report was not Hamilton drafted, not Hamilton signed,
and not Hamilton authorized. Indeed, Hamilton could never have even seen The Condensed
Report: it was drafted long after Hamilton had died.
31. The endorsement on the back of The Condensed Report states: 2 Cong [Document] No. 34 2
Sess. Condensed43 and then underneath the word Condensed appears Report from
Secretary of the Treasury with names & compensation of all Officers in the civil employ of
the Government, 1793 Feb 27 Series 10 No. No. [sic] 34 Miscellaneous,44 and there is also
a notation (which is upside down) stating: Condensed by Order of the Secretary of the
Senate.45

39
See 1 Journal of the Senate of the U.S.A. 441 (1820) (May 7, 1792 entry), bit.ly/2rQswt8,
http://tinyurl.com/y76jnn3u; id. at 497 (February 27, 1793 entry), http://tinyurl.com/y8mkk9wx.
40
See 1 Journal of the Senate of the U.S.A. 441 (1820) (May 7, 1792 entry), bit.ly/2rQswt8.
41
id. at 497 (February 27, 1793 entry), http://tinyurl.com/y8mkk9wx.
42
See 1 Journal of the Senate of the U.S.A., cover page (Gales & Seaton 1820),
http://tinyurl.com/ybn3hqq5.
43
See Exhibit P, The Condensed Report, at 1. See also Exhibit B, Letter from Katherine Mollan, National
Archives, to Seth Barrett Tillman, at 2 (June 7, 2017).
44
See Exhibit P, The Condensed Report, at 1. See also Exhibit B, Letter from Katherine Mollan, National
Archives, to Seth Barrett Tillman, at 2 (June 7, 2017).
45
See Exhibit P, The Condensed Report, at 1. See also Exhibit B, Letter from Katherine Mollan, National
Archives, to Seth Barrett Tillman, at 2 (June 7, 2017).

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TILLMAN DECLARATION

32. Hamilton produced The Complete Report in response to an order of the Senate.46 By contrast,
The Condensed Report was produced in response to an order of the Secretary of the Senate, a
mere appointee or functionary (albeit in a highly placed Legislative Branch position: an
Office . . . under the United States). I have no reason to believe that Hamilton or any other
cabinet member would have responded to such an order absent clear statutory authority or
express guidance from the President. I know of no such statute and no such guidance from
President Washington directing Hamilton to obey orders from nonelected Senate
functionaries, such as the Secretary of the Senate. The obvious meaning of this notation is
that the Secretary of the Senate, post-1820, issued this order to his own staff (and not to
Hamilton or the Treasury Department in 1793) in order to have Senate staff prepare a shorter
version of The Complete Report for use in American State Papers.47
33. As for the endorsement on The Condensed Report, it says Condensed and then on another
line it identifies what had been condensed: the Report from [the] Secretary. In other words,
the endorsement does not identify who drafted the report under discussion, but only what
item had been condensed (i.e., The Complete Report).
34. I conclude that The Condensed Report was prepared for publication in ASP (which was
edited by the Clerk of the House and Secretary of the Senate). This inference is supported by
the Introduction to volume 1 (Foreign Relations series) of ASP. The Introduction states:
At the first view, it does not appear difficult to ascertain the specific duties required from
us. The documents are to be selected by us. It would, therefore, seem that, when we had
given the publishers a list of the papers to be reprinted, our agency was at an end.
Circumstances, however, which we will now explain, rendered it impossible that our
duties could stop here. The great mass of these documents were to be found only in the
archives of the two Houses [of Congress]. No complete set of them existed in any other
place. They were contained in one hundred and sixty octavo and folio printed volumes,
eighty large folio manuscript records, and in some hundred large files of documents.
Charged, as we are, with the care and preservation of all these important documents, we
could not, for a moment, permit them to go into the hands of others over whom we had

46
See 1 Journal of the Senate of the U.S.A. 441 (1820) (May 7, 1792 entry) (reporting the Senates order),
bit.ly/2rQswt8, http://tinyurl.com/y76jnn3u; Exhibit L, The Complete Report Cover Letter, at 2
(reproducing The Complete Reports Hamilton-signed cover letter which stated that the report was
produced in obedience to the order of the Senate).
47
See 1 American State Papers/Foreign Relations, at title page & vii (Clerk of the House and Secretary of
the Senate eds., Gales & Seaton 1833) (indicating that the Secretary of the Senate and Clerk of the House
were directed by an 1831 statute to compile documents for publication in ASP),
http://tinyurl.com/ybrqg9f7; 1 American State Papers/Miscellaneous, at title page (Clerk of the House
and Secretary of the Senate eds., Gales & Seaton 1834) (this is the volume reporting The Condensed
Report), http://tinyurl.com/y8gq8eep.

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TILLMAN DECLARATION

no control. To make the separation of those to be published, without producing disorder,


required the knowledge and experience, and the most patient, persevering industry of the
most able of our assistants, and of ourselves. Had any one, without that knowledge of
these things, which can only be obtained by long experience, undertaken to separate and
arrange these documents, he would have been in great danger of reducing the whole to a
heap of confusion. In addition to this, many of these documents exist only in the
manuscript records of the two Houses, consisting of large folio volumes substantially
bound, and in the best state of preservation. We could not suffer these valuable records to
be taken apart, and the portions selected sent to the printing office. We were also
unwilling, either to permit them to be taken from the office to be copied, or to permit
strangers to come into the office, and occupy our desks and tables in copying them.
From these considerations, (and others of a similar nature not here detailed,) it
was evident to us that it was out duty, not only to select these documents, but also to
prepare them for the press.
....
From all these considerations, it was evident to us, that, if we acted at all under
the [A]ct of Congress [of March 2, 1831], it was our duty to assume the whole
responsibility of editing the work.
December 29, 1831
Walter Lowrie [Secretary of the Senate]
Mw. St. Clair Clarke [Clerk of the House]48

35. My view is that The Condensed Report postdates The Complete Report. The former is largely
(but not entirely) a scriveners copy of the latter, with changes made to accommodate
publication in ASP and an audience circa 1830. As a scrivener, the copyist copies the
document, including the original signature. But the purported signature, i.e., where
Alexander Hamilton is written, was not written by Hamilton.
36. If I made a long hand copy of Lincolns Gettysburg Address, and if I copied Lincolns
signature, one would not say that Lincolns signature appeared on my Tillman-drafted copy.
The words Alexander Hamilton appear on The Condensed Report, but those words do not
amount to a signature.
37. The same is true of the date. The Condensed Report has the words February 26th 1793 on
its first page.49 I believe the scrivener who drafted The Condensed Report copied that date
from The Complete Report.
38. If I made a long hand copy of Lincolns Gettysburg address, and if I copied the date from the
original, i.e., November 19, 1863, into my copy, one might conclude (based on my copy)
when Lincoln gave his famous address, but one could not conclude (based on my copy, and
the words November 19, 1863) when I drafted the document.

48
1 American State Papers/Foreign Relations, at vii-ix (1833) (emphasis added).
49
See Exhibit P, The Condensed Report, at 2.

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TILLMAN DECLARATION

39. Just so here, the scrivener copied the date in The Complete Report into The Condensed
Report, but when The Condensed Report was drafted cannot be determined from the face of
The Condensed Report. In other words, although the words February 26th 1793 appear in
The Condensed Report, the documents creation date is unknown. As a result, The
Condensed Report is undated. This understanding of the pre-20th century world of scriveners
is basic: such a conclusion flows directly from the fact that the 18th and 19th centuries
lacked photocopiers. All know this. Thus copies had to be made by hand (unless set to type).
Such copies only reflected the date of the underlying documents creation, and not the copys
creation date (unless otherwise indicated by marginalia or by other means).
40. The Condensed Report (and the reproduction or report of The Condensed Report in ASP)
includes the President and Vice President. But the significance of this document, The
Condensed Report (which was drafted decades after the founding by an unknown Senate
functionary, and decades after Hamiltons Complete Report, and long after Hamiltons
death), does not outweigh the significance of the document actually signed by Alexander
Hamilton (The Complete Report), which was part of an official Treasury Department
communication to the Senate. It follows that The Complete Report has all the authority of a
modern Office of Legal Counsel memorandum or Comptroller Generals opinion. By
contrast, The Condensed Report has little or no such value. As my attorney and I explained in
the Tillman Amicus brief filed in the related action in the Southern District of New York:
Both documents are probative of the legal meaning of Office . . . under the United States as
used in the Senate order. But the two documents are not equally probative.50
41. My attorney and I stand behind every word in the conclusion above (i.e., the conclusion put
forward in the related Southern District of New York action). Indeed, in writing in this
manner, my attorney and I all too generously recognized (although we need not have) that
The Condensed Report had some marginal utility and connection to the interpretive issue
before that court and, now, before this Court. To put it another way, just as diplomatic gifts
50
Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant at 19 n.76,
Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, President of the United States
of America, Civ. A. No. 1:17-cv-00458 (S.D.N.Y. June 16, 2017) (Abrams, J.) (filed by Professor Josh
Blackman & Robert W. Ray, Esq.), Doc. No. 37, 2017 WL 2692500, https://ssrn.com/abstract=2985843;
see also Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in
Support of the Defendant, Senator Richard Blumenthal v. President of the United States of America, Civ.
A. No. 1:17-cv-01154-EGS (D.D.C. Sept. 19, 2017) (Sullivan, J.) (filed by Professor Josh Blackman and
Robert W. Ray, Esq.), Doc. 16-1, 2017 WL 4230605, https://ssrn.com/abstract=2996384.

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TILLMAN DECLARATION

from the Age of Jackson (and subsequent to that) are probative of the meaning of the
Constitutions Foreign Emoluments Clause, such gifts are not nearly as probative as
diplomatic gifts received by President Washington and by his successors during the Early
Republic. Similarly, a scriveners copy based on the Hamilton-signed original, a copy drafted
in the Age of Jackson, circa 1830, may have language useful in interpreting the Constitution
of 1789, but such a document is not nearly as probative as the Hamilton-signed original from
1793 (during President George Washingtons administration).
42. A few final miscellaneous points are worth addressing. Recently, and in connection with
current litigation, some have characterized ASP as Congress record in regard to the
Hamilton documents. I see no basis for this assessment. The compilation of documents for
and the production of ASP unleashed a frenzy of destruction on Americas vital documentary
records from the Founding era.51 Even were I to assume that The Complete Report and The
Condensed Report were produced contemporaneously, (and they were not) it strikes me as
more than odd to suggest that Lowrie and Clarke, the Secretary and Clerk in 1831, made any
attempt to assess or had any interest in assessing which of these two documents (or if both or
neither) had Hamiltons actual signature on them etc.
43. Recently, and in connection with current litigation, some have suggested that ASP indicates
that The Condensed Report was an authentic document drafted and signed by the Treasury
Department and Alexander Hamilton. These people are laboring under a very real
misconception. PAH identifies documents signed by Hamilton as DS. The Complete
Report is marked DS. PAH did not do that for The Condensed Reports reproduction which
appeared in ASP. Furthermore, PAH reproduced in whole or in part all bona fide Hamilton
documents in its collection (except those documents connected to Hamiltons law practice,
which were part of a separate series). It is the very fact that The Condensed Report was not
reproduced in the pages of PAH (and not listed as DS) which indicates that PAHs editors
rejected this document as a bona fide Hamilton-signed document.52

51
See Introduction, The Early Republic Critical Editions on the Founding of the United States (last
visited September 4, 2017) (When Congress authorized publication of the American State Papers in
1831, the editors of the series made their own markings right on the House documents and even cut many
papers out of the bound manuscript books. (emphasis added)), http://tinyurl.com/ycu2vocw.
52
See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United
States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton 157, 159 nn.13 (1969),
http://perma.cc/49RT-TTGF.

14
TILLMAN DECLARATION

44. Recently, and in connection with current litigation, some have suggested that the February
27, 1793 transmittal letter accompanied The Condensed Report as part of a second
communication from Hamilton (or the Treasury Department) to the Senate. I see no coherent
argument justifying this conclusion. The evidence that the transmittal letter accompanied The
Complete Report is overwhelming. First, the expert editors of the Papers of Alexander
Hamilton, writing in a nonlitigation driven environment, writing long before President
Trump came on the political scene, while in full possession of all the facts including both
reports (and the American State Papers reproduction), affirmed that the transmittal letter
accompanied The Complete Report.53 Second, the Senate Journal and the Senate rules
support the view that Hamilton (and the Treasury Department) sent one report, and only one
report, to the Senate. That report was The Complete Report and the transmittal letter was part
of that report. Third, the Hamilton signature on the transmittal letter matches the Hamilton
signature in The Complete Report, as opposed to what appears in The Condensed Report.
Fourth and most importantly, the transmittal letter states that the accompanying report was
sent in response to an order of the Senate. By contrast, it was the Secretary of the Senate
that ordered production of The Condensed Report. There is no complexity here: the
documentary record is pellucidly clear.
45. Those who argue that Hamilton or the Treasury transmitted The Condensed Report as a
second and more complete report, have put forward no good reason as to why Hamilton
would have needed additional documents in order to report the Presidents and Vice
Presidents salaries within The Complete Report (but would have taken the time to do so in
The Condensed Report). After all, the Presidents and Vice Presidents salaries had been set
by statute back in 1789. 54 There was no good reason for Hamilton to omit the Presidents and
Vice Presidents salaries from the first (and, in my view, only) report, The Complete Report,
if Hamilton actually thought that such information was responsive to the Senates request.
Finally, even if The Condensed Report was produced by Hamilton and the Treasury

53
See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United
States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton 157, 159 n.1 (1969) (explaining, in a
footnote to the two-page cover letter to The Complete Report, that [t]he communicating letter, dated
February 27, 1793, may be found in RG 46, Second Congress, 17911793, Reports of the Secretary of the
Treasury, National Archives), perma.cc/49RT-TTGF.
54
See An Act for Allowing a Compensation to the President and Vice President of the United States,
ch. 19, 1, 1 Stat. 72 (1789).

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TILLMAN DECLARATION

Department (and it was not), any such position misses the primary point: a Treasury
Department report which remained in the Treasury Departments files, i.e., a report which
was not actually transmitted to the Senate, tells us nothing about public meaning,55 and there
is no evidence that The Condensed Report was received by the Senate from Hamilton (or
from the Treasury Department). There is no entry in the Senate Journal supporting any such
inference.
<continued on next page>

55
See Jed Shugerman, George Washingtons Secret Land Deal Actually Strengthens CREWs
Emoluments Claim [Updated], Shugerblog: Law, History, Emoluments, Quo Warranto plus some
family fun (May 30, 2017), http://tinyurl.com/ycfnuupo (Private/secret actions have little import for
original public meaning.).

16